HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chatebadhur Balchand
Applicant
-and-
City of Toronto, Toronto Civic Employees Union, Local 416, Alex Krebelj, Myles Currie, Hector Moreno, Trevor Tenn, Ted MacMillan and John Murphy
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Balchand v. Toronto (City)
APPEARANCES
Chatebadhur Balchand, Applicant
Self-represented
City of Toronto, Myles Currie, Hector Moreno, Trevor Tenn, Ted MacMillan and John Murphy, Respondents
Omo Akintan, Counsel
Toronto Civic Employees Union, Local 416 and Alex Krebelj, Respondents
Devon Paul, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.
2In a Case Assessment Direction dated August 9, 2013, the Tribunal directed that a Summary Hearing would be held to determine a number of preliminary issues, including delay and whether the Application should be dismissed on the basis that it has no reasonable prospect of success.
3The summary hearing was held via conference call on February 5, 2014 during which all of the parties participated.
Deferral
4At the commencement of the proceeding I sought submissions from the parties on the issue of deferral. The parties confirmed that a number of grievances filed by the applicant had been referred to Arbitrator John Stout and that the hearing into the grievances had already commenced the week before.
5All of the parties consented to deferring the Application filed against the City of Toronto, Myles Currie, Hector Moreno, Trevor Tenn, Ted MacMillan and John Murphy until the conclusion of the grievance and arbitration proceeding.
6I was satisfied that there was substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances and that it was most fair, just and expeditious to defer the Application as against these respondents. I therefore issued an oral ruling deferring the Application as against the City of Toronto, Myles Currie, Hector Moreno, Trevor Tenn, Ted MacMillan and John Murphy until the conclusion of the grievance and arbitration proceeding.
Summary Hearing
7All the parties agreed that the arbitration hearing would not address the allegations as against the Toronto Civic Employees Union, Local 416 (the “Union”) and Alex Krebelj, a representative of the Union. On the consent of the parties the Tribunal proceeded with the Summary Hearing but only with respect to these two respondents.
8Having heard the applicant’s submissions and in reviewing the Application, it is clear that the applicant is dissatisfied with the Union’s representation of his interests and in pursuing his grievances.
9However, the Tribunal has held that it is not discrimination for a union to decide not to pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:
Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors. See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.
10Though the applicant is dissatisfied with the Union’s representation of his interests throughout his interactions with the Board this is not the issue. The issue is whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the conduct of the Union and his disability (Dabic v. Windsor Police Service, 2010 HRTO 1994).
11I am satisfied that the applicant did not point the Tribunal to any evidence which could establish that the Union’s conduct was discriminatory and as such the Application as against the Union and Alex Krebelj is dismissed as having no reasonable prospect of success.
Order
12The Tribunal orders:
a. The Application as against the Toronto Civic Employees Union, Local 416 and Alex Krebelj is dismissed and the title of proceedings of any future decision shall be amended to remove their names; and
b. The Application as against the City of Toronto, Myles Currie, Hector Moreno, Trevor Tenn, Ted MacMillan and John Murphy is deferred until the conclusion of the grievance and arbitration proceeding.
13The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
14I am not seized of this matter.
Dated at Toronto, this 14th day of March, 2014.
“Signed by”
Geneviève Debané
Vice-chair